New York has a strong policy toward preventing discrimination based on prior criminal convictions and its progressive policy outlook should encouraged. In 2007 a report concluded that New York employees were largely unfamiliar with State laws regulating an employer’s use of prior criminal convictions for employment-related decisions, and in response, the legislature amended Section 296 of New York Executive Law to require employers to post and disseminate information regarding a job applicant’s or current employee’s rights with respect to an employer’s use of prior criminal convictions. With one in five adults having a criminal record in the United States, legislation such as this is vital to keeping the work force in New York strong

Strassel, Robert D

English

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4-26-2010 
Criminal Convictions and Employment Rights In New York State 
Robert D. Strassel 
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Criminal Convictions and Employment Rights In New York State 
Abstract 
New York has a strong policy toward preventing discrimination based on prior criminal convictions and its 
progressive policy outlook should encouraged. In 2007 a report concluded that New York employees were 
largely unfamiliar with State laws regulating an employer’s use of prior criminal convictions for 
employment-related decisions, and in response, the legislature amended Section 296 of New York 
Executive Law to require employers to post and disseminate information regarding a job applicant’s or 
current employee’s rights with respect to an employer’s use of prior criminal convictions. With one in five 
adults having a criminal record in the United States, legislation such as this is vital to keeping the work 
force in New York strong. 
Keywords 
Buffalo, Poverty/Low Wage Work/Income Inequality, Equality/Civil Rights, Workforce Development, Low 
Wage Work, Policy Brief, PPG, PDF 
This article is available at DigitalCommons@ILR: https://digitalcommons.ilr.cornell.edu/buffalocommons/139 
     
 
 
 
 
Policy Brief                                                                                    April 26, 2010 
 
Criminal Convictions and Employment Rights 
 In New York State 
Robert D. Strassel 
 
 
 
 
Executive Summary 
New York has a strong policy toward preventing discrimination based on 
prior criminal convictions and its progressive policy outlook should 
encouraged.   
 
In 2007 a report concluded that New York employees were largely 
unfamiliar with State laws regulating an employer’s use of prior criminal 
convictions for employment-related decisions, and in response, the 
legislature amended Section 296 of New York Executive Law to require 
employers to post and disseminate information regarding a job applicant’s 
or current employee’s rights with respect to an employer’s use of prior 
criminal convictions.
i
   
 
With one in five adults having a criminal record in the United States, 
legislation such as this is vital to keeping the work force in New York 
strong.
ii 
 
What are New York’s Laws  on Employment Discrimination? 
In 1945, New York became the first state in the nation to enact a law 
against discrimination.
iii
  The New York State Division of Human Rights 
2 
 
enforces New York’s human rights laws in administrative adjudications, 
with appeals to a New York State Supreme Court for adverse decisions .   
 
Effective July 6, 2009, the Division of Human Rights can assess civil 
rights and penalties in cases in which the Commissioner finds a 
respondent liable for an unlawful discriminatory practice.
iv
 These fines 
may be imposed in an amount up to $50,000, or up to $100,000 where the 
conduct is found to be willful, wanton or malicious and will not reduce or 
offset any compensatory damages awarded to a prevailing complainant.
v
 
Signed into law by Governor Paterson on April 7, 2009, this addition to 
the Human Rights Law will apply in all cases of discrimination, including 
cases of employment discrimination, which comprise over 80% of the 
Division’s cases.vi  Previously, the imposition of civil fines under the 
Human Rights Law was limited to cases of housing discrimination.
vii
   
  
New York Executive Law §296(15) 
New York Executive Law §296(15) provides the 
basis of New York’s policy concerning employers 
and persons with criminal convictions looking for 
employment. It reads as follows: 
 
“It shall be an unlawful discriminatory practice for 
any person, agency, bureau, corporation or 
association, including the state and any political 
subdivision thereof, to deny any license or 
employment to any individual by reason of his or her 
having been convicted of one or more criminal 
offenses, or by reason of a finding of a lack of “good 
moral character” which is based upon his or her 
having been convicted of one or more criminal 
offenses, when such denial is in violation of the 
provisions of article twenty-three-A of the correction 
law. Further, there shall be 
a rebuttable presumption in favor of excluding from evidence the prior 
incarceration or conviction of any person, in a case alleging that the 
employer has been negligent in hiring or retaining an applicant or 
employee, or supervising a hiring manager, if after learning about an 
applicant or employee's past criminal conviction history, such employer 
has evaluated the factors set forth in section seven hundred fifty-two of the 
correction law, and made a reasonable, good faith determination that such 
factors militate in favor of hire or retention of that applicant or 
employee.”viii 
 
 
 
 
3 
 
New York Correction Law Article 23-A 
New York Correction Law Article 23-A provides specific guidelines for 
employers to follow in deciding whether to hire a person with a criminal 
conviction.  It reads as follows: 
 
§752. Unfair discrimination against persons previously convicted of 
one or more criminal offenses prohibited:  
No application for any license or employment, and no employment or 
license held by an individual, to which the provisions of this article are 
applicable, shall be denied or acted upon adversely by reason of the 
individual's having been previously convicted of one or more criminal 
offenses, or by reason of a finding of lack of "good moral character" 
when such finding is based upon the fact that the individual has 
previously been convicted of one or more criminal offenses, unless: 
 
(1) There is a direct relationship between one or more of the 
previous criminal offenses and the specific license or employment 
sought or held by the individual; or 
 
(2) the issuance or continuation of the 
license or the granting or 
continuation of the employment would 
involve an unreasonable risk to 
property or to the safety or welfare of 
specific individuals or the 
general public. 
 
 
§753. Factors to be considered 
concerning a previous criminal 
conviction; presumption: 
 
1. In making a determination pursuant to 
section seven hundred fifty-two of this chapter, the public agency or 
private employer shall consider the following factors: 
 
(a) The public policy of this state, as expressed in this act, to 
encourage the licensure and employment of persons previously convicted 
of one or more criminal offenses. 
(b) The specific duties and responsibilities necessarily related to 
the license or employment sought or held by the person. 
(c) The bearing, if any, the criminal offense or offenses for which 
the person was previously convicted will have on his fitness or ability 
to perform one or more such duties or responsibilities. 
(d) The time which has elapsed since the occurrence of the criminal 
offense or offenses. 
4 
 
(e) The age of the person at the time of occurrence of the criminal 
offense or offenses. 
(f) The seriousness of the offense or offenses. 
(g) Any information produced by the person, or produced on his 
behalf, in regard to his rehabilitation and good conduct. 
(h) The legitimate interest of the public agency or private 
employer in protecting property, and the safety and welfare of specific 
individuals or the general public. 
 
 
2. In making a determination pursuant to section seven hundred 
fifty-two of this chapter, the public agency or private employer shall 
also give consideration to a certificate of relief from disabilities or 
a certificate of good conduct issued to the applicant, which 
certificate shall create a presumption of rehabilitation in regard to 
the offense or offenses specified therein. 
 
Rehabilitation and Reintegration into the Work Forceix 
As noted by an article published by The Sentencing Project, New York 
was the only state as of 2005 that requires a public agency or private 
employer to give consideration to an administrative certificate of 
rehabilitation, which creates a presumption in regard to rehabilitation of 
the offenses that the person was convicted of.
x
  Currently, New York has 
two types of administrative certificates of rehabilitation.   They are a 
“Certificate of Relief From Disabilities”, found at New York Correction 
Law §§ 700-05, and a “Certificate of Good Conduct”, found at New York 
Correction Law §§ 703-a and 703-b. As of 2006, only six jurisdictions in 
the United States have similar types of certificates of rehabilitation.
xi
  
 
According to the Division of Criminal Justice 
Services, an average of 3,200 of both kinds of 
certificates are issued each year.
xii
  
Approximately 1000 applications are made to 
the Parole Board for both kinds of certificates 
annually and approximately half are issued.
xiii
  
The bulk of the remaining certificates are issued 
by the courts.
xiv
  A New York State Bar 
Association committee has speculated that the 
low amount of certificate applications is due to 
the fact that most offenders are not told of 
them.
xv
 
 
Certificate of Relief From Disabilities 
To relieve an eligible offender of any forfeiture or disability, or to remove 
any bar to his employment, automatically imposed by law by reason of his 
conviction of the crime or of the offense specified therein. Such certificate 
5 
 
may be limited to one or more enumerated forfeitures, disabilities or bars, 
or may relieve the eligible offender of all forfeitures, disabilities and bars. 
Provided, however, that no such certificate shall apply, or be construed so 
as to apply, to the right of such person to retain or to be eligible for public 
office. 
 
Certificate of Good Conduct: 
A certificate of good conduct may  be  granted as provided in this section 
to relieve an individual of any disability, or to remove any bar to  his  
employment,  automatically imposed  by  law  by  reason  of  his  
conviction of the crime or of the offense specified therein. Such certificate 
may be  limited  to  one  or more  enumerated  disabilities or bars, or may 
relieve the individual of all disabilities and bars. 
 
The state board of parole, or any three members thereof by unanimous  
vote,  shall  have  the  power  to  issue  a  certificate  of  good  conduct  to  
any person previously convicted of a  crime  in  this  state,  when  the  
board  is satisfied that: 
    (a)  The  applicant  has conducted himself in a manner warranting such 
  issuance for a minimum period  in  accordance  with  the  provisions  of 
  subdivision three of this section; 
    (b) The relief to be granted by the certificate is consistent with the 
  rehabilitation of the applicant; and 
    (c) The relief to be granted is consistent with the public interest. 
 
 
 
 
Why Should this Legislation be Encouraged? 
 
Adverse Effects of Criminal Convictions 
According to a New York State Bar Association committee, 
approximately 60% of people formerly incarcerated are unemployed one 
year after release, and approximately 80% of people who violate the terms 
of their probation are unemployed at the time of their violation.
xvi
  
Additionally, a study conducted by Professor Devah Pager concluded that 
a criminal record reduced the chances of a callback after a job application 
6 
 
has been submitted by 50%.
xvii
  Even more alarming, study concluded that 
“black men whose job applications stated that they had spent time in 
prison were only about one-third as likely as white men with similar 
applications to receive a positive response".
xviii
 
 
Adverse Effects of Hiring a Person with a Criminal Conviction:: 
Like most jurisdictions in the United States, New York recognizes 
negligent hiring as a theory of liability and this threat of liability creates an 
incentive for employers to avoid hiring individuals with criminal 
convictions.  
 
 
 
 
 
                                                             
i Employment Law Watch, “New Legislation Modifying New York Law Governing Use 
of  
  Criminal Background Checks” (2009), 
http://www.employmentlawwatch.com/2009/01/articles/employment-us/new-legislation-
modifying-new-york-law-governing-use-of-criminal-background-checks-in-employment-
taking-effect-posting-date-february-1-2009/ 
ii National Employment Law Project, “Criminal Records and Employment” (2010), 
http://www.employmentlawwatch.com/2009/01/articles/employment-us/new-legislation-
modifying-new-york-law-governing-use-of-criminal-background-checks-in-employment-
taking-effect-posting-date-february-1-2009/ 
iii New York State Division of Human Rights, “Mission Statement” (2010), 
http://www.dhr.state.ny.us/mission.html 
iv New York State Division of Human Rights, “Division Accomplishments” (2009), 
http://www.dhr.state.ny.us/pdf/division_accomplishments_7_10_2009.pdf 
v Id. 
vi Id. 
vii Id. 
viii “New York courts have recognized that the guidelines of Article 23-A 
   are in tension with the threat of liability posed by the negligent hiring 
   theory. In deference to the public policy concerns embodied in Article  
   23-A, the courts have restrained the reach of negligent hiring by putting 
   limits on the element of proximate causation”.  New York State Bar  
   Association, “Collateral Consequences of Criminal Proceedings”.     
ix National Employment Law Project, “Criminal Records and Employment”. 
xLove, Margaret, “Relief From the Collateral Consequences of a Criminal Conviction:  A 
State by State Resource Guide”, (Oct. 2005), 
http://www.sentencingproject.org/doc/File/Collateral%20Consequences/execsumm.pdf 
xi Safer Foundation, “Certificates of Rehabilitation and Other Forms of Relief From the 
Collateral Consequences of a Criminal Conviction”, (2006), 
http://www.saferfoundation.org/docs/AllStates-BriefingSheet91906_2_.pdf 
xii New York State Bar Association, “Collateral Consequences of Criminal Proceedings”, 
(2006), 
http://www.nysba.org/AM/Template.cfm?Section=Home&CONTENTID=11415&TEMP
LATE=/CM/ContentDisplay.cfm 
xiii Id. 
xiv Id. 
xv
 Id. 
7 
 
                                                                                                                                                       
xvi Id. 
xvii Devah Pager, “The Mark of a Criminal Record”, 108 AM. J. SOC. 5, 937-75 (Mar. 
2003). 
xviii
 New York State Bar Association, “Collateral Consequences of Criminal Proceedings” 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
Partnership for the Public Good 
237 Main St., Suite 1200, Buffalo NY 14203 
www.ppgbuffalo.org 
 
 


Criminal Convictions and Employment Rights In New York State

New York has a strong policy toward preventing discrimination based on prior criminal convictions and its progressive policy outlook should encouraged. In 2007 a report concluded that New York employees were largely unfamiliar with State laws regulating an employer’s use of prior criminal convictions for employment-related decisions, and in response, the legislature amended Section 296 of New York Executive Law to require employers to post and disseminate information regarding a job applicant’s or current employee’s rights with respect to an employer’s use of prior criminal convictions. With one in five adults having a criminal record in the United States, legislation such as this is vital to keeping the work force in New York strong.EqualityCivilRights__Criminal_Convictions_and_Employment_Rights_in_New_York_State.pdf: 13 downloads, before Oct. 1, 2020

Strassel, Robert D.

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